Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper No. 33
`Entered: February 9, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`WAG ACQUISITION, L.L.C.,
`Patent Owner.
`________________
`
`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`________________
`
`Record of Oral Hearing
`Held: January 4, 2024
`________________
`
`
`
`
`Before HUBERT C. LORIN, JOHN A. HUDALLA, and
`STEVEN M. AMUNDSON, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`EAMONN GARDNER, ESQ.
`Cooley LLP
`1144 15th Street
`Suite 2300
`Denver, Colorado 80202
`(858) 550-6086
`egardner@cooley.com
`
`
`
`NAINA SONI, ESQ.
`Cooley, LLP
`1299 Pennsylvania Avenue NW
`Suite 700
`Washington, DC 20004
`(202) 728-7153
`nsoni@cooley.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`RONALD ABRAMSON, ESQ.
`M. MICHAEL LEWIS, ESQ.
`Liston Abramson LLP
`405 Lexington Avenue
`46th Floor
`New York, New York 10174
`(212) 257-1630
`ron.abramson@listonabramson.com
`michael.lewis@listonabramson.com
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, January
`
`4, 2024, commencing at 10:00 a.m. EST
`
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`
`9:59 a.m.
`
`THE CLERK: All rise.
`
`JUDGE LORIN: Good morning, please be seated. All right, good
`
`morning everyone. This is an oral hearing covering two cases, IPR2022-
`01412 and 01413. IPR2022-01412 concerns --
`
`(Interruption.)
`
`COURT REPORTER: Are we off the record for a minute?
`
`JUDGE LORIN: Yeah, we'll go off the record now.
`
`(Whereupon at 10:00 a.m., the above-entitled matter went off the
`record and resumed at 10:03 a.m.)
`
`JUDGE LORIN: Okay. As I was saying, IPR2022-01412 concerns
`U.S. Patent 9,742,824 and the 1413 concerns U.S. Patent 9,762,636. In both
`cases, Petitioners Google, LLC and Patent Owners WAG Acquisition,
`L.L.C. I'm Judge Lorin. Accompanying me is Judge Hudalla and Judge
`Amundson, who is on the video remote. Let's begin with counsel for the
`parties. Please introduce yourselves for the record, starting with Petitioner.
`
`MS. SONI: Good morning. Naina Soni, on behalf of Petitioner
`Google, LLC and with me is my colleague, Eamonn Gardner.
`
`JUDGE LORIN: And will you be, will you be arguing for Petitioner?
`
`MS. SONI: I'll be arguing a portion. Mr. Gardner will be arguing as
`well.
`
`
`
`
`JUDGE LORIN: Okay, very good. Thank you very much.
`MS. SONI: Thank you.
`JUDGE LORIN: Patent Owner.
`
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`MR. ABRAMSON: Yes. My name is Ronald Abramson, and with
`
`me is Michael Lewis for the Patent Owner WAG Acquisition, L.L.C.
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`JUDGE LORIN: And you'll be arguing for Patent Owner?
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`MR. ABRAMSON: I'll be arguing.
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`JUDGE LORIN: Okay. Thank you, Mr. Abramson. All right. Let's
`go through some preliminaries. We stated in our hearing order of November
`15th that each party will be given 60 minutes. Petitioner will proceed first,
`then Patent Owner. Using any reserved rebuttal time, Petitioner may then
`respond to Patent Owner's case. And finally using any reserved sur-rebuttal
`time, Patent Owner may respond to Petitioner's rebuttal arguments. We
`received demonstratives from both parties, so thank you for that. The panel
`is reminded that the parties -- that the exhibits are only considered to the
`extent they're helpful to the panel, that they articulate positions taken during
`the hearing, reflect arguments and evidence made of record throughout the
`trial.
`
`We ask that each presenter identify clearly each demonstrative exhibit
`by slide and screen number as you speak. Bear in mind that Judge
`Amundson's appearing by video, so please be clear when talking about the
`slides. Please remember this hearing is open to the public, and a full
`transcript of the hearing will become part of the record. Counsel for
`Petitioner, you may begin.
`
`MS. SONI: Thank you.
`
`JUDGE LORIN: Would you like to reserve some rebuttal time?
`
`MS. SONI: Yes, 15 minutes please.
`
`JUDGE LORIN: Okay.
`
`(Pause.)
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`MS. SONI: So good morning. My name is Naina Soni, and with my
`
`partner, Eamonn Gardner, I'll be presenting on behalf of Petitioner Google,
`LLC in IPRs 2022-01412 and 1413 relating to the `824 and `636 patents. So
`I'll be addressing arguments relating to Google's motion to exclude, as well
`as claim construction, and then hand it over to Mr. Gardner to address the
`grounds identified in Google's petitions in both IPRs.
`
`Google's motion to exclude relates to four of Patent Owner's exhibits
`falling into two buckets. The first bucket is hearsay, and as the Board
`knows, there are two elements for hearsay. The first is out of court
`statements; second, that are offered for the truth of the matter asserted. So
`turning to the first element, Exhibits 2003, 2004 and 2009, as you can see on
`Slide 3, are declarations, deposition testimony and hearing testimony from
`experts that are not involved in this IPR.
`
`So these experts, Dr. Houh and Dr. Jeffay are not retained by either
`Patent Owner or Petitioner Google in these IPRs. They have not presented
`testimony in these IPRs, nor have they been examined in these IPRs.
`
`Turning to the second element, Patent Owner and its expert, Mr.
`Hoarty, in his declaration, which is Exhibit 2002 to the IPRs, are attempting
`to rely on these out of court statements. This out of court testimony by these
`experts for the truth of the matter asserted, and on Slide 4, we have some
`examples from the Patent Owner response and the Patent Owner sur-replies
`for citing to Mr. Hoarty's declaration as we can see on the left of Slide 4, for
`various statements and testimony provided by these experts.
`Just taking the example on the left of Slide 4, we see that Patent
`Owner in its sur-reply cites to Mr. Hoarty, which in turn cites to Dr. Jeffay's
`testimony in Exhibit 2009, which is the ITC transcript hearing testimony that
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`he provided, characterizing how a person of ordinary skill in the art would
`supposedly understand HTTP to function, and Patent Owner and Mr. Hoarty
`are relying on these statements for the truth of these statements.
`
`As Google cited in its motion to exclude and the reply, and as you can
`see on the following two slides, Slides 5 and 6, there are several cases in
`which the PTAB has regularly excluded this kind of testimony, testimony
`that is out of court testimony, declarations, deposition transcripts, hearing
`transcripts from experts not involved in the present IPR, testimony that's not
`presented in the present IPR, and WAG did not distinguish these cases in its
`opposition to Google's motion to exclude.
`
`I could mention on Slide 5 we have the ABS Global case. That's a
`portion of that decision, and Slide 6 is a portion of the decision from GAF
`Materials. Both of these again are cited in Google's motion and reply. Now
`Patent Owner contends that it's relying on these exhibits for corroboration.
`But none of the cases that it cites in its opposition to Google's motion allow
`for out of court expert testimony to be offered as corroborative evidence in
`IPRs.
`
`And that's for good reason. We don't want parties to abuse the line of
`what is corroboration versus what is hearsay and enter into evidence
`testimony from experts not involved in the present proceeding, experts that
`are not made available for cross-examination. Nonetheless, if the Board
`does allow these exhibits to remain in the record, these again are Exhibits
`2003, 2004 and 2009, the weight of the evidence falls in Google's favor, and
`that's what's shown on Slide 7.
`
`So more experts, if we do consider testimony from experts not
`involved in this case, support Google's understanding of the Carmel
`
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`reference, of the Carmel reference and support Google's position than those
`that do not.
`
`So turning to the second bucket of exhibits, this bucket only includes
`one of Patent Owner's exhibits, that's Exhibit 2008, which is a decision from
`the same ITC matter in which Dr. Jeffay provided testimony. That initial
`determination is not relevant for several reasons. It's, it involved unrelated
`patents. The patents in that case pertained to adapted bit rate streaming.
`That's not at issue in the two patents we're discussing today, this `824 and
``636 patents. It was analyzing evidence from different experts, so experts
`again that are not involved in the present IPRs.
`
`It was relying on different standards, and in the context of a full
`evidentiary record that's not available here. So different parties, different
`patents, different standards, different claims.
`
`JUDGE AMUNDSON: This is Judge Amundson. I have a question.
`
`MS. SONI: Yes.
`
`JUDGE AMUNDSON: About the ALJ's decision in the ITC
`investigation, and at a high level, it seems to me that WAG wants to
`introduce and to show what the -- another fact finder said about one of the
`references at issues here, and to me, that doesn't seem all that different than
`what Google did in the 1411 IPR, where Google wanted to submit a decision
`by the Board on appeal, another fact, another fact finder that said something
`about a reference at issue in that proceeding. So I really don't understand
`why the situations are different.
`
`MS. SONI: Sure. So the situations are different for a few different, a
`few reasons. The first is that the Board decision that Google provided the
`notice of supplemental authority for in the 1411 IPR proceeding, that
`
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`7
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`

`

`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`involved Patent Owner WAG, so at least one of the parties overlapped.
`Another reason is that the patent at issue in that case is related. So the one,
`the patent at issue in the Notice of Supplemental Authority, that Board
`decision, is related to the `636 and `824 patents.
`
`Whereas the patents in the ITC hearing are completely unrelated.
`They're owned by a completely different entities, were developed by a
`completely different entity, Dish Corporation, pertain to different
`technology. So adaptive bit rate streaming, which is not claimed in WAG's
`patents, either the patent that was part of that Board decision or part of these
`IPRs. Additionally, the Carmel reference -- so the Carmel reference in the
`ITC decision is being compared to very different claims.
`
`We also don't have the full evidentiary record, so as just one example
`Dr. Jeffay's written direct was marked "confidential." So there's a bit of a
`difference in the posture of what Google provided the Notice of
`Supplemental Authority for with respect to the Hill reference versus this ITC
`decision.
`
`JUDGE AMUNDSON: Well all right. I understand all that, but
`assuming okay, there are all those differences, but why don't those
`differences just relate to the weight the panel should give the evidence, as
`opposed to the admissibility of the evidence?
`
`MS. SONI: Sure. So we believe that it’s irrelevant. But even if the
`Court, if the Board decides to weigh that evidence, it has minimal value
`given these differences, and that minimal relevance or probative value is far
`outweighed by potential for confusion of the issues, the waste of time, unfair
`prejudice. Nonetheless, if the Board was to consider this evidence, it should
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`also consider, for example, the two decisions that we have on the slide, Slide
`9.
`These both are also exhibits in this -- in the present IPRs, Exhibits
`
`1108 and Exhibits 1110. Both of these are claim construction decisions
`from the Northern District of California in two different matters, one against
`Apple, the second against Microsoft where Emblaze, the company that
`actually developed the Carmel reference and that owns the Carmel reference,
`was advocating for how the Carmel disclosures themselves should be
`interpreted. So whereas the ITC decision was comparing the Carmel
`reference to adapted bit rate streamlining claims, these two decisions are
`directly involving construing the Carmel limitations in view of its
`disclosures.
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`And so if the Board is going to give Exhibit 2008 any weight, it
`should also consider these two exhibits.
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`JUDGE AMUNDSON: All right, thank you.
`
`MS. SONI: Thank you, and in doing so, the weight of the evidence
`then falls in Google’s favor. Unless the Board has any further questions
`from me on the motion to exclude, I’m going to move on to claim
`construction issues. Great, thank you.
`
`So turning to claim construction, on Slide 11 we just have Claim 1 of
`both the `824 and the `636 patents, highlighting where they are different. So
`really the purpose of this slide is to show the significant overlap between the
`two claims and the two patents. The differences that are highlighted are that
`the `824 pertains to prerecorded audio and video, whereas the `636 pertains
`to live. Otherwise, for the purposes of claim construction I’ll be addressing
`the limitations together.
`
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
`
`So the first issue that I’d like to address is Patent Owner’s
`
`construction, proposed construction for terms in the preamble of claims.
`Specifically, Patent Owner attempts to rewrite the claims at this juncture to
`require the streaming or delivery of an entire program. The word “entire”
`itself does not appear in the preamble or the claims. Patent Owner is now
`inserting that improperly under the guise of claim construction, and indeed
`Patent Owner’s own expert contradicts this position.
`
`So during deposition when he was asked, and this testimony is on
`Slide 13. “So you would agree, Mr. Hoarty, that an audio or video program
`might only refer to a portion of the program,” and this is in the context of the
`claims. He testified, I believe, turning to the second issue, Patent Owner in
`its Patent Owner response makes similar arguments for both of these
`limitations, which the parties then subsequently characterize in their briefing
`as the request limitations.
`
`These limitations require each request to identify each and every
`media data element by its serial identifier according to Patent Owner. This
`again is an improper rewriting of the claims. So looking at the claim
`language itself, the claims require a request for one or more of the media
`data elements stored in the data structure. Each received a request
`specifying one or more serial identifiers of the requested one or more media
`data elements.
`
`Again, Patent Owner is attempting to improperly rewrite the claims at
`this juncture to require that each received request specify each and every
`serial identifier. Again, this is an improper rewriting and so should be
`rejected for that reason. But nonetheless as Mr. Gardner will explain as he
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`walks through the grounds, Carmel satisfies either construction, either the
`one or more serial identifiers or the each and every.
`
`Turning to the third claim construction issue I’d like to address today,
`this pertains to the data rate of the data connection limitation, which is
`shown on Slide 16. With respect to this limitation as shown on Slide 17,
`both parties appear to agree that this limitation relates to the capability of the
`data connection, which is in other words the maximum possible data rate,
`not its transitory data rate. So what is the maximum rate that this data
`connection may have? And Patent Owner in its Patent Owner response as
`shown on Slide 17, stated this means that the data connection must be
`capable of a data rate, and Dr. Polish, Google’s expert also testified during
`his deposition, again shown on Slide 17, the point here I think is that the data
`rate of the data connection is the greatest transmission rate of that
`connection in practice.
`
`The specification of the patents also acknowledges this. At just using
`the `824 specification as an example, at column 4, lines 46 to 53, the patent
`notes that a connection available may be, for example, by a dial-up modem,
`which has a maximum received data rate of 56 K bits per second. The spec.
`continues in column 5, lines 9 through 11, to acknowledge that the actual
`rate though during delivery, because it’s an Internet connection, may
`fluctuate slightly.
`
`And despite appearing to agree, as shown on the previous slide, that
`the data connection limitation refers to the capability of the data connection,
`Patent Owner seems to take inconsistent positions during its Patent Owner
`response in its subsequent briefing, when applying the Carmel reference to
`this limitation. So as you can see on the left side of Slide 18, Patent Owner
`
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`11
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`

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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`then goes on to however suggest that Carmel does not teach a data
`connection having the capability to send data more rapidly than the playback
`rate over the entirety of such a stream.
`
`But this is inconsistent for three different reasons. First, it’s
`inconsistent with positions that Patent Owner itself has taken. Second, it’s
`inconsistent with the teachings of the specification, and third it’s inconsistent
`with the technology that was being used at the time, again as acknowledged
`by Patent Owner and the specification. As we can see on the right side of
`the screen of Slide 18, Patent Owner itself acknowledges that interruptions
`are impossible to avoid.
`
`And so the top quote there on Slide 18, on the right of Slide 18, quotes
`from the patents itself, and it says “The data connection as claimed as over
`the Internet. Thus, the connection will predictably exhibit a degree of
`irregularity, because that is the nature of Internet connections.” So we know
`that there’s going to be fluctuation in what the data rate may be at any given
`point in time. The bottom quote is also on Slide 19, and so Patent Owner
`agrees that due to Internet interruptions, that rate that the data is sent or
`transmitted will not always be faster than the playback rate. It’s just -- it’s
`impossible.
`
`The patent acknowledges that -- Patent Owner acknowledges that
`except for when it is applying Carmel to its own limitations. And so for this
`reason, the claims don’t require always sending or transmitting data at a rate
`faster than the playback rate or maximizing bandwidth. And as we can see
`on the right side of this slide, of Slide 19, this is just one example that Dr.
`Polish provides in his reply declaration, which is Exhibit 1111, showing that
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`there is going to be a drop in the transmission rate when there’s a drop in the
`bandwidth that’s available.
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`Unless the Board has any questions for me on claim construction, I’m
`going to turn it over to Mr. Gardner to walk through the grounds.
`
`JUDGE LORIN: No, no questions. Thank you.
`
`MS. SONI: Great. Thank you so much.
`
`MR. GARDNER: Thank you. As Ms. Soni mentioned, I’m Eamonn
`Gardner and I’ll be addressing the Carmel obviousness grounds, and I think
`Ms. Soni stated this well, that the claims here are largely overlapping. And
`so the issues that I address will be common to both the `636 and `824 patents
`that are at issue here. We don’t understand Patent Owner to be making any
`unique arguments between the two different patents, and so we’ll address the
`issues commonly.
`
`Virtually all of Patent Owner’s validity arguments hinge on Patent
`Owner’s mischaracterization of the Carmel reference as being a server-
`controlled or what they refer to as a push reference. And as we’ll discuss in
`this first issue, Carmel teaches a client-controlled approach to download. In
`the petition, the Carmel grounds that Petitioners relied on focused on two
`embodiments as alternatives. So Figure 6A and Figure 6B are two
`embodiments in Carmel that are alternative embodiments.
`
`Now Patent Owner has focused its arguments entirely on 6B, and tried
`to make sort of this issue, citing to some other proceedings where there were
`decisions about 6B. But in Petitioner’s submissions, we think we’ve sort of
`clearly laid out in our briefing why both 6A and 6B qualify as invalidating
`embodiments.
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`13
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`IPR2022-01412 (Patent 9,742,824 B2)
`IPR2022-01413 (Patent 9,762,636 B2)
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`But the fact is that they are alternative embodiments to invalidation
`here, and so we think that the Board does not even need to reach the issues
`related to 6B, because 6A by itself invalidates and provides a basis for
`teaching each of the limitations that are at issue here.
`
`I don’t think that Patent Owner has addressed the embodiments in 6A.
` I mean we’ll -- we think that reviewing their briefing and reviewing the
`arguments here, they try to focus their arguments on 6B without actually
`addressing the unique features in 6A that provide invalidation to the claims
`here.
`
`So moving to Slide 22, Figure 2 of Carmel shows a computer 34 that
`controls or that provides or uploads these slices to a server system 36. Now
`both parties agree about that part. There’s no dispute that those same slices
`are then downloaded to client’s 30. The real dispute or the real issue
`between the parties is whether or not the client’s 30 controls that download
`process or whether the server controls that download process.
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`As we will go through in detail, Carmel teaches a client-side control
`approach or what we’ll refer to as a pull approach. Slide No. 23 provides an
`initial example of this. So on the left, we have disclosure from Column 9
`that teaches for upload. The computer 34 establishes one or more links with
`server 36. And on column 10, which is shown on the right, which is the
`embodiment from Figure 6A, Carmel teaches that client 30 similarly
`establishes links for downloads.
`
`So again we’re seeing that while what client 30 does to control
`upload, and I’m sorry what client 30 does to control upload is similar to
`what client computer 34 did to control the reverse. On Slide 24, we see
`more parallel disclosure. We see it in column 9. It teaches that computer 34
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`monitors the rate on each link. So in order to be able to control the upload
`process, it’s the computer that monitors the rate on each link, and in column
`10 for the embodiment in Figure 6A, Carmel teaches that client 30 similarly
`monitors the data rate on each link. So again, this is a client-controlled
`process.
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`On Slide 25, we again see this parallel disclosure. We see that, for
`example, on the right-hand side of the slide in column 10, starting around
`line 56, it discusses that the client 30 controls the number of links that are
`being used, and it expressly recognized that it does it in the same way as
`described above, i.e. as described for the computer 34. So again, we’re
`seeing that the client 30, controls the number of links in a similar way as
`computer 34, did it.
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`On Slide 26, we again see this parallelism, and I think that this
`example we’ll come back to. It’s important. The computer 34 monitors the
`rate on each link, and then allocates files amongst the links according to that
`data rate. So it, the computer during the upload process is deciding which
`files go on which link. And then it expressly teaches in column, I apologize,
`in column 9 at line 46, it says “A similar technique is preferably employed
`by client’s 30.”
`So it’s expressly teaching that the clients use this approach. So it
`doesn’t say that the server uses this approach. It expressly teaches that the
`similar technique is used by client’s 30. So again, we’re seeing this repeated
`over and over disclosure that the clients for the download process are in
`control.
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`On Slide 27, we see further disclosure related to how client 30,
`controls the download process in a similar way to -- that computer 34
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`controls the upload process. So in particular in this example, we see in
`column 13, sorry, we see at the top of the screen, which is a repeat of
`column 12, line 60, it teaches how the check link operation in Figure 5
`works for upload, right. So it’s discussing the upload process.
`
`And then when we get down to column 13 at line 24, it again it
`confirms that it’s talking about the upload process in reference to Figure 5,
`and then it teaches expressly, starting at line 30, it says “Although the details
`of these steps have been described primarily with reference to Figure 5, it
`will be understood that similar methods are be applicable mutatis mutandis
`to the method of downloading those files as shown in Figure 6A.”
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`So it’s expressly teaching us that the disclosure that was provided in
`reference to Figure 5 applies equally to Figure 6A. And once again, Figure
`6A is disclosing how the client’s 30 operate. So it’s expressly teaching us
`that how the computer operates for purposes of upload is similar and should
`be understood commonly with how the client’s 30 operate for purposes of
`download. Now --
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`JUDGE AMUNDSON: This is Judge Amundson. I have a question.
` As I understand Carmel, it discloses an applet for a client that allows the
`client to operate in accordance with Carmel’s disclosure, and Carmel
`references a software appendix that provides supposedly details about the
`client applet. Did you have anyone look at the software appendix, to try to
`figure out exactly what the client is doing?
`
`MR. GARDNER: So this isn’t actually in the record in this case, and
`so I’ll recognize that while answering your question. The answer is that that
`applet is apparently corrupted in some way. I know that that was looked at
`in the Emblaze v. Apple cases, where Dr. Polish was an expert and he did try
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`to review that, and it was corrupted in some way and so could not be
`reviewed.
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`JUDGE AMUNDSON: All right, thank you.
`
`MR. GARDNER: Yep. Moving on to Slide 28, we’ve highlighted a
`portion of the disclosure in column line or column 13, line 7 through 11,
`where it’s talking about one aspect of the check link function. So the
`disclosure, again starting in the previous column, column 12, and then
`extending through into column 13, is talking about the check link function
`that’s in Figure 5 in Box 88. And as part of the check link function, what
`Carmel expressly teaches is that for optimal and reliable functioning, the
`slice transmission time, so the amount of time it takes to transmit a slice,
`should desirably be close to or less than the slice duration.
`
`And we’ll talk about this a little bit later, but again, this disclosure is
`teaching us that the amount of time that it should take to transmit the slice,
`as part of this check link function, you compare the slice transmission time
`to the slice duration and you want to make sure it’s close to or less than. So
`essentially that you are transmitting faster than the amount of time it would
`play back that exact same slice.
`
`And again, Carmel expressly teaches that this same disclosure, the
`step which is the check link function on Figure 88 applies equally to the
`corresponding step in Figure 6A. Then the question is, does Figure 6A have
`a corresponding step, and yes, of course it does. As we see highlighted
`here, Figure 5 has a check link function as the final step for the upload
`process, and Figure 6A has a link function check as the last step of the
`download process.
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`And so again, we’re seeing these parallels, where the Carmel
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`reference teaches that, you know, it provides exemplary disclosure for the
`upload, and then teaches us that the same type of disclose also applies to the
`download. Going to Slide 29, I just want to briefly mention that in Patent
`Owner’s sur-reply, they accused us of raising this as a new argument, this
`sort of client control as a new argument. It's replete throughout their
`petition.
`
`I’m just going to provide examples where the language is exactly
`parallel to the argument I just made, where it says “A POSITA would
`understand from the overall disclosure in Carmel that the client 30 controls,”
`and it repeats that phrase throughout. So Slide 29 just provides a few
`examples, but again throughout the entirety of the petition we make
`consistent argument.
`
`Now moving to Slide No. 30, the way that Patent Owner has
`characterized this dispute as a pull versus push dispute, and to be clear,
`Petitioner has argued that a client-controlled approach, what I’ve just
`described as a client-controlled approach is consistent with a pull approach,
`now as in their original `824 petition, which is the 1412 IPR at page 38.
`
`I don’t know that the words “pull versus push” matter. I don’t think
`that that wording makes a difference. What we’re really focused on is what
`is in control of the download process, and as I just went through at length,
`we think that Carmel clearly establishes that the clients are in control of that
`download process.
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`I do want to respond to the primary argument, though, that Patent
`Owner has raised, and that primary argument Patent Owner has raised is that
`because Carmel teaches HTTP, that that is therefore a push embodiment, and
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`this is just inconsistent with a personal of ordinary skill’s understanding of
`HTTP, as well as the Carmel reference expressly.
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`So as I’ll go through, the use of HTTP in Carmel is completely
`consistent with how you would understand a pull reference, and this is for
`three reasons. First, Carmel teaches that the slices are stored as separate
`files, and as we’ll get into, when you’re storing the slices as separate files,
`that that matters because then those slices need to be actually requested
`individually, or at least a person of skill in the art would understand that they
`would be requested individually. Carmel expressly teaches that those slices,
`including for the embodiment in Figure 6A, are downloaded using HTTP,
`and then again, as I mentioned, the